Gerald Binfet v. State of Indiana (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Sep 30 2015, 9:21 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
William J. Cohen Gregory F. Zoeller
Cohen Law Offices Attorney General of Indiana
Elkhart, Indiana Chandra K. Hein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Gerald Binfet, September 30, 2015
Appellant-Defendant, Court of Appeals Case No.
20A03-1412-CR-442
v. Appeal from the Elkhart Superior
Court
State of Indiana, The Honorable Charles Carter
Appellee-Plaintiff Wicks, Judge
Trial Court Cause No.
20D05-1310-FD-1110
Mathias, Judge.
[1]   Gerald Binfet (“Binfet”) pleaded guilty in Elkhart Superior Court to Class D
felony theft. He was ordered to serve a two-year sentence with six months
Court of Appeals of Indiana | Memorandum Decision 20A03-1412-CR-442 | September 30, 2015 Page 1 of 8
executed on home detention and the remainder of the sentence suspended to
probation. Binfet was ordered to pay restitution to the victim in the amount of
$27,974.57 by making payments in the amount of $300 per month. Binfet
appeals the restitution order and raises the following three issues:
I. Whether the trial court violated Binfet’s Sixth Amendment right to
confront witnesses against him when it admitted hearsay testimony at the
restitution hearing;
II. Whether the restitution order is supported by sufficient evidence; and,
III. Whether the trial court abused its discretion when it ordered Binfet to
pay $300 per month toward the restitution judgment.
[2]   We affirm.
Facts and Procedural History
[3]   Binfet was a plant manager for Valmont Industries in 2012 through 2013. On
several occasions during his employment, Binfet sold copper and scrap
aluminum metal owned by Valmont, which he was not authorized to do, and
kept the proceeds from the sales for himself.
[4]   Binfet was charged with Class D felony theft on October 14, 2013, and on
February 4, 2014, he pleaded guilty as charged. The plea agreement provided
that Binfet would receive a two-year sentence with a six-month cap on executed
time and eighteen months suspended to probation. Binfet also agreed to pay
restitution in an amount to be determined by the trial court.
[5]   Binfet was sentenced on March 10, 2014, but the restitution hearing was not
held until October 10, 2014. At the restitution hearing, a detective with the
Court of Appeals of Indiana | Memorandum Decision 20A03-1412-CR-442 | September 30, 2015 Page 2 of 8
Elkhart County Sheriff’s Department testified concerning his investigation of
Binfet’s scrap metal sales. Over Binfet’s objection on right of confrontation
grounds, the detective testified that Binfet sold copper and scrap aluminum to
John Brockleman. Brockleman then sold the copper and scrap metal to Sam
Winer’s & Sons. The detective obtained “scrap tickets” from Sam Winer’s
during the time period when Binfet worked for Valmont. After the detective
obtained the “scrap tickets,” he showed them to Brockleman, who verified that
the tickets listed the copper or scrap aluminum that Binfet sold to Brockleman
without Valmont’s permission.
[6]   Binfet argued that Brockleman bought scrap metal from many customers, not
just Binfet. Binfet claimed that the scrap aluminum that he sold to Brockleman
was likely co-mingled with scrap metal from Brockleman’s other customers.
Therefore, the amounts of scrap aluminum metal represented on the “scrap
tickets” included more than Valmont’s scrap aluminum. Binfet admitted that he
received approximately $15,000 total for Valmont’s copper and scrap aluminum
that he stole and sold. Valmont argued that Binfet should be ordered to pay
approximately $100,000 in restitution. The trial court took the matter under
advisement.
[7]   On November 6, 2014, the court issued an order calculating restitution in the
amount of $27,974.57. The trial court found that Binfet had the ability to pay
$300 per month toward the restitution judgment. Binfet then filed a motion to
correct error, which the trial court denied. Binfet now appeals.
Court of Appeals of Indiana | Memorandum Decision 20A03-1412-CR-442 | September 30, 2015 Page 3 of 8
Restitution
[8]   In his plea agreement, Binfet agreed to pay restitution in an amount to be
determined by the trial court. The trial court concluded that Valmont Industries
was owed $27,974.57 in restitution and ordered Binfet to make payments on
that judgment in the amount of $300 per month.
[9]   Restitution orders are within the discretion of the trial court. Sickels v. State, 982
N.E.2d 1010, 1013 (Ind. 2013). Indiana Code section 35-50-5-3(a) provides that
a trial court may order a defendant “to make restitution to the victim of the
crime[.]” The statute does not define the term “victim,” but our supreme court
has held that “restitution is properly payable to those shown to have suffered
injury, harm or loss as a direct and immediate result of the criminal acts of a
defendant.” Sickels, 982 N.E.2d at 1013 (citations omitted).
[10]   First, Binfet argues that his Sixth Amendment right of confrontation was
violated when the trial court allowed the detective to testify concerning his
transactions with Brockleman and Brockleman’s sale of the copper and
aluminum scrap to Sam Winer’s. Also, over Binfet’s continuing objection, the
trial court admitted State’s Exhibits One through Fourteen, which are records
of Brockleman’s sales to Sam Winer’s on the dates that Binfet sold Valmont’s
copper or aluminum scrap. The trial court utilized these exhibits to calculate the
restitution judgment.
[11]   The Sixth Amendment right of confrontation does not apply to proceedings that
are not criminal prosecutions. See Smith v. State, 971 N.E.2d 86, 89 (Ind. 2012).
Court of Appeals of Indiana | Memorandum Decision 20A03-1412-CR-442 | September 30, 2015 Page 4 of 8
This includes probation revocation and sentencing hearings. See id; Debro v.
State, 821 N.E.2d 367, 374 (Ind. 2005). Similarly, restitution hearings are not
criminal prosecutions; therefore, the trial court properly overruled Binfet’s
objection to the admission of the detective’s testimony and accompanying
exhibits on Sixth Amendment grounds.
[12]   Moreover, hearsay evidence is admissible at sentencing and restitution
hearings. See Ladd v. State, 710 N.E.2d 188, 182 (Ind. Ct. App. 1999) (citing
Kotsopoulos v. State, 654 N.E.2d 44, 46-47 (Ind. Ct. App. 1995)); Ind. Evid. Rule
101(c)(2). However, the defendant must be given the opportunity to refute any
information he claims is inaccurate. Cloum v. State, 779 N.E.2d 84, 92 (Ind. Ct.
App. 2002); see also Moyer v. State, 796 N.E.2d 309, 313 (Ind. Ct. App. 2003)
(observing that a criminal defendant is “entitled to be sentenced only on the
basis of accurate information”).
[13]   In this case, Binfet was given the opportunity to cross-examine both the
investigating detective and the representative from Valmont Industries, who
testified at the restitution hearing. Also, Binfet testified concerning the amount
of money he received after he stole and sold Valmont’s copper and aluminum
scrap. Therefore, Binfet had the opportunity to present his own evidence to
attempt to refute the State’s calculation of the restitution owed. The trial court
also specifically concluded that the investigating detective’s testimony was
reliable hearsay. Tr. p. 29.
Court of Appeals of Indiana | Memorandum Decision 20A03-1412-CR-442 | September 30, 2015 Page 5 of 8
[14]   Binfet also argues that the trial court’s restitution order in the amount of
$27,974.57 is not supported by sufficient evidence. “A restitution order must be
supported by sufficient evidence of actual loss sustained by the victim or victims
of a crime.” Rich v. State, 890 N.E.2d 44, 49 (Ind. Ct. App. 2008), trans. denied.
The amount of actual loss is a factual matter that can be determined only upon
the presentation of evidence, and a trial court's order of restitution is reviewed
for an abuse of discretion. Id. We will affirm the trial court's order if it is
supported by sufficient evidence. Id.[15]   The detective who investigated Binfet’s theft testified that he interviewed
Brockleman and his employees and the employees from Sam Winer’s & Co.,
the scrapyard that bought Valmont Industries’s copper and aluminum scrap
from Brockleman. From those interviews, the detective obtained “scrap
tickets,” which were admitted into evidence as State’s Exhibits One through
Fourteen. The detective re-interviewed Brockleman after he obtained the scrap
tickets to confirm that the load of copper or aluminum scrap sold to Sam
Winer’s on the date noted on the ticket was scrap obtained from Valmont
Industries. See e.g. tr. p. 26. For each of the fourteen transactions represented in
Exhibits One through Fourteen, the detective testified that Binfet was the only
employee from Valmont Industries from whom Brockleman bought the copper
and aluminum scrap. Tr. p. 45.
[16]   The only evidence that the copper or scrap aluminum that Brockleman sold to
Sam Winer’s came from Valmont Industries, was the detective’s testimony
relaying what Brockleman and his employees reported to the detective. The
Court of Appeals of Indiana | Memorandum Decision 20A03-1412-CR-442 | September 30, 2015 Page 6 of 8
detective admitted he had no personal knowledge that the copper and scrap
aluminum sold to Sam Winer’s as represented on Exhibits One through
Fourteen belonged only to Valmont Industries.
[17]   However, “[e]vidence supporting a restitution order is sufficient ‘if it affords a
reasonable basis for estimating loss and does not subject the trier of fact to mere
speculation or conjecture.’” S.G. v. State, 956 N.E.2d 668, 683 (Ind. Ct. App.
2011) (citation omitted). The investigating detective personally spoke to
Brockleman, his employees, and employees of Sam Winer’s & Co. He also
obtained the “scrap tickets” directly from Sam Winer’s. From this evidence, the
trial court had a reasonable basis for estimating Valmont Industries’ loss. For
these reasons, we conclude that sufficient evidence supports the trial court’s
$27,974.57 restitution judgment.
[18]   Finally, Binfet, who is gainfully employed, argues he is financially unable to
pay $300 per month toward the restitution judgment.1 Binfet’s monthly income
is $2975.05, and his total expenses are $2573.94; therefore, his income exceeds
his expenses by $401.11 per month. Binfet has the ability to pay restitution, and
the trial court acted within its discretion when it ordered him to pay $300 per
1
Binfet’s reliance on Indiana Code section 24-4.5-5-105 to argue that the trial court should have ordered him
to pay only $229.45 per month based on his weekly wage is unavailing. As the State appropriately notes in its
brief, civil creditor remedies concerning garnishment do not apply to a criminal restitution order. See Ind.
Code § 24-4.5-1-201 (stating “this article applies to sales, leases, and loans made in this state and to
modifications, including refinancings, consolidations, and deferrals, made in this state, of sales, leases, and
loans, wherever made”).
Court of Appeals of Indiana | Memorandum Decision 20A03-1412-CR-442 | September 30, 2015 Page 7 of 8
month toward the $27,974.57 restitution judgment. At a rate of $300 per month,
Binfet will pay the restitution judgment in full in 7 years and 10 months.
[19]   Affirmed.
Baker, J., and Bailey, J., concur.
Court of Appeals of Indiana | Memorandum Decision 20A03-1412-CR-442 | September 30, 2015 Page 8 of 8